Government Announces Proposed Amendments to National Security Bill To Address Journalist
Concerns

Attorney-General Christian Porter has issued a Media Release on 5 March 2018, announcing that the Government has devised a number of amendments
to National Security Legislation Amendment (Espionage and Foreign Interference) Bill 2017 (Cth) (the Bill). The amendments address issues that have been raised by submissions to the Parliamentary
Joint Committee on Intelligence and Security Committee (the PJCIS Committee), which is currently considering the Bill. The Government hopes that these amendments
ensure it will strike the correct balance between keeping Australia safe and not impeding
the work of journalists and media organisations.

For more information on the Bill, see TimeBase’s previous article on this topic.

Background

After initially being introduced to the House of Representatives on 7 December 2017
by Mr Turnbull, the Bill is currently before the House of Representatives where it is awaiting further
discussion.

This Bill is the part of a five-year process of modernising Australia’s national security
laws which the Government believes is vital to protect Australians.

The Proposed Changes

“… been carefully considering the issues raised by media organisations and others
to the Parliamentary Joint Committee on Intelligence and Security (PJCIS) to devise a series of amendments to improve the Bill … I have met directly with
a range of key stakeholders, including representatives of Australia's major media
organisations to ensure the proposed amendments address central concerns raised by
the stakeholders … Considering and making amendments to national security legislation
reflects the process that has been followed for the nine tranches of national security
laws passed since 2014, which have seen 273 Government amendments to those Bills,
including 125 recommended by the PJCIS. These amendments have been provided to the
PJCIS during its inquiry into the Bill to ensure it can consider them before it delivers
its report later this month. It is expected the inquiry process, as has been the
case with the other nine tranches of national security legislation, will make further
recommendations for drafting improvements which the Government will consider in due
course.”

Concern Over Media Restrictions

Mr Porter said there has been no intention to unnecessarily restrict appropriate freedoms
of the media and that where drafting improvements are identified that strike a better
balance, the Government will promote those changes.

Overview of the Proposed Amendments

The proposed amendments to Schedule 2 of the Bill (which also include amendments to
the Crimes Act 1914 and the Criminal Code Act 1995), will:

create separate offences that apply to non-Commonwealth officers that are narrower
in scope than those applying to Commonwealth officers and only apply to most dangerous
and serious conduct;

narrow the definitions of inherently harmful information and causes harm to Australia's interests, which will form part of the offences applying to Commonwealth officers;

removing any requirement for journalists to demonstrate that their reporting was “fair
and accurate”;

ensuring the defence is available where a journalist reasonably believes that their
conduct was in the public interest; and

clarifying that the defence is available for editorial and support staff as well as
journalists themselves.

The amendments also address a number of other concerns including the definition of
security classification [in the Criminal Code Act 1995], the breadth of the offence at section 91.3 [also the Criminal Code Act 1995] and the application of strict liability to elements of the offence relating to security
classified information.

What's Next?

The next public hearing for the Bill is proposed for 16 March 2018, with the Committee
expected to present its report in April 2018. To date, more than 40 submissions relating
to the proposed amendments have been received by the Committee.

TimeBase is an independent, privately owned Australian legal publisher specialising
in the online delivery of accurate, comprehensive and innovative legislation research
tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not
substitute for the advice of competent legal counsel.